President Ujjain Development Authority and Another vs Banshidhar Bhatt and Others

N.K. Mody, J.

Being aggrieved by the judgement dated 11.2.2008 passed by II Addl. District Judge, Ujjain in Civil Appeal no. 1 -A/2008, whereby appeal filed by the respondent no. 1 was allowed and order dated 5.4.2007 passed by Civil Judge Class II, Ujjain in Civil Suit No. 17-A/2007, whereby the application filed by the appellant under Order 7 Rule 11 CPC was allowed, was set aside and the case was remanded with certain directions, the present appeal has been filed.

Short facts of the case are that respondent No. 1 filed a suit alleging that respondent No. 1 is the owner of plot No. 161 situated at Shri Ganesh Nagar Colony, Devas Road, Ujjain. It was alleged that size of the plot was 1500 sq.ft., which was purchased by respondent No.1 from respondent No.4 vide registered sale deed dated 6.5.87 and since then the respondent No.1 is in occupation of the said plot. It was alleged that appellant has published a scheme, which was notified in the Gazette on 14.5.93 but in fact no possession has been taken from the respondent No.1 till date of filing of the suit. It was prayed that appellant be restrained from interfering with the possession of respondent No.1.

An application was filed by appellant under Order 7 Rule 11 CPC, wherein it was alleged that appellant has acquired the property under the provisions of M.P. Land Acquisition Act after due publication of the notice u/s 4 and 6 of the Act. It was also alleged that after depositing the compensation the possession of the land has also been taken by the appellant. It was prayed that in the facts and circumstances the application filed by the appellant be allowed and the suit be dismissed. After hearing the parties by the order dated 5.4.2007 learned trial Court dismissed the suit, against which the appeal was filed by the respondent No.1. By the impugned judgement learned appellate Court allowed the appeal and set aside the order passed by the trial Court and remanded the case to the trial Court, against which the present appeal has been filed.

Shri Rajendra Samdani, learned counsel for the appellants submits that the impugned order passed by the appellate Court is illegal and deserves to be set aside. It is submitted that appellant is an undertaking of the Government of Madhya Pradesh. After due notification u/s 4 and 6 of the Land Acquisition Act, the land was acquired by the appellant authority, which also includes the alleged plot of respondent no. 1. It is submitted that compensation has been paid by the appellant and possession has been taken by the appellant. It is submitted that in the circumstances the suit filed by the respondent No. 1 itself is not maintainable. It is submitted that respondent No. 1 is not in possession of the suit land. It is submitted that in the facts and circumstances of the case learned Trail Court committed error in passing the impugned judgement. Reliance is placed on a decision in the matter of State of Bihar Vs. Dhirendra Kumar and others, , wherein the Hon''ble Apex Court has held that validity of notification u/s 4 and declaration u/s 6 of Land Acquisition Act Civil Court has no jurisdiction to go into that. Reliance is also placed on a decision in the matter of S.P. Subramanya Shetty and others Vs. Karnataka State of Road Transport Corporation and others, , wherein the Hon''ble Apex Court has held that where the notification u/s 4(1) was upheld by the Supreme Court and became final, suit filed by a person interested for an injunction for restraining the Government from interfering with his possession, is not maintainable. It was also observed that Court cannot compel the Government to withdraw the notification.

Learned counsel for the respondent no. 4 submits that respondent No. 4 is the Housing Society. After obtaining the No Objection Certificate from the appellant and also after getting the layout plan sanctioned from Town & Country Planning the colony was developed and the plots were sold to the plot holders. It is submitted that in the facts and circumstances it cannot be said that suit filed by the respondent No. 1 was not maintainable. It is also submitted that the respondent No. 1 has filed the suit for permanent injunction and the suit cannot be dismissed upon an application filed by the appellant under Order 7 Rule 11 CPC as the suit is barred by any law. It is submitted that in the facts and circumstances of the case appeal filed by the appellant be dismissed.

From perusal of the record, which contains the civil suit filed by respondent, it is evident that in the suit the prayer was for permanent injunction, wherein it was prayed that the appellant be restrained not to dispossess the respondent No. 1, who is in possession of the plot No. 161 situated at Shri Ganesh Nagar Colony, Dewas Road, Ujjain forcibly.

In the matter of S. P Subramanya Shetty (supra), wherein the Hon''ble Apex Court has held that the suit u/s 9 CPC is barred is altogether different. In that suit a mandatory injunction was prayed against the State Government to denotify the acquisition u/s 48 of the Act. In that situation Hon''ble Apex Court has held that civil suit relating to acquisition proceedings is not maintainable and by implication, cognizance of such suit u/s 9 CPC is barred. The Hob''ble Apex Court has also observed that Court cannot issue mandatory injunction against the State to denotify u/s 48. It was also observed that the Court cannot compel the Government to withdraw the notification u/s 4 of the Act. It is for the Government to consider the same on merits keeping in mind subservience of public interest.

In the facts and circumstances of the case, in the opinion of this Court, no illegality has been committed by the learned appellate Court in setting aside the order dated 5.4.2007 passed by the learned Civil Court. In view of this appeal filed by the appellant has no merit and is hereby dismissed. However, parties are directed to appear before the learned trial Court on 3.12.2009.